Tuesday, July 26, 2016

I just watched Sandra Bland's mother address the Democratic National Convention, and so I decided to re-run the blog I wrote about her one year ago. The bail insurance lobbyist called the article about her death a "strawman" article -- nice.

Oh, and by way of update, a while back the jail actually said that it wasn't negligent when Sandra died in their custody. Instead, attorneys for the jail actually tried to pin the blame on Sandra's family and friends for their "refusal" to bail her out.

Her bail amount "was not significant." No, I didn’t say this – a bail insurance company lobbyist did. The quote, in full, is actually, “The issue of bail had nothing to do with this person’s suicide, in my opinion. The amount was not significant and the family was working with a bondsman to post bail.”

This gives you a bit of insight into the people behind our traditional money bail system. Bail insurance company lobbyists could really care less about the humans who bear the brunt of a broken system of bail in America. Let’s break this quote down.

“Not significant?” Well, it kept her in jail, so I think that’s pretty significant. The most interesting conversations I have with commercial bail people happen when they talk about amounts that are “significant” or “reasonable.” Some time ago, a commercial bail guy came to our local county justice meeting and, with a completely straight face, said, “The other day I saw a judge set bail at $50,000, which is reasonable, but another judge set another bail at only $500, and that’s just wrong.” To a bail insurance company lobbyist, amounts are reasonable when they can make money off of them, and they’re unreasonable when they can’t. And only an overpaid lobbyist could ever say that a $5,000 financial condition isn’t significant.

“Working with a bondsman?” Well, there’s an article out there saying that some bondsman actually called Sandra’s mother, but that was it. I assume the phone call went something like this: “Your daughter’s bail is $5,000, so to get her out of jail you’ll have to come up with a $500 non-refundable fee for me and then put up some collateral to cover the rest.” These kinds of conversations happen every day across America, and they’re why it takes an average of 10 days for people to bond out through commercial sureties. And in those ten days, research has found, a lot of really bad things can happen.

“The issue of bail had nothing to do with [Sandra’s] suicide?” The bail insurance guy says that “there were clearly other issues [going] on in this person’s life.” What kind of issues? Everybody has issues going on in their lives, and no matter how significant those issues are, you can bet that if the person is stuck in a cage, incarceration is issue number one.

This is the problem with bail insurance companies – the groups who lobby hard to keep the commercial money bail system alive in America – they simply don’t have any compassion or common sense. It’s a problem that we’ve had with this industry ever since we created it in 1900. And it’s a big problem in Texas, which is kind of an enclave for bail insurance companies and the lackeys that these insurance people hire to try to muddle and spin the tragedy of money bail.

Let’s face it. There’re at least three big issues that need to be addressed concerning the death of Sandra Bland: (1) her arrest; (2) the nature of her detention; and (3) the money bail that kept her in jail. Because bail insurance companies make money on number three, they’ll be hoping that everyone – including you – will focus only on numbers one and two.

Sunday, July 17, 2016

I got on the
elevator the other day with a bail insurance guy. He started talking about
commercial bail, and the whole thing went like this:

On the first floor,
he said, “Commercial bail is the lynchpin of the criminal justice system”

I said, “Well, no, not
really. I’d say the lynchpin is the constitution, and even though bail’s in
there, commercial bail isn’t.”

On the second floor,
he said: “I believe the system of bail is in place not for the accused as
much as it is for victims, society and the interest of justice.”

I replied, “You see,
this is where it helps to know something about the constitution. The right to
bail is reserved for people accused of crimes. Saying it’s not is like saying that
the right to speedy and public jury trials, the right to confront witnesses, and
the right to assistance of counsel aren’t for defendants but are mostly for
victims and society. Is the right to be free from cruel and unusual punishment
in there for victims? All that stuff is in the constitution to keep the government
in check. Now, the government can limit pretrial freedom to protect victims and
society, but commercial bail doesn’t have anything to do with protecting
anyone.”

On the third floor,
he said, “While mistakes happen, the impetus for an arrest is probable cause
and therefore on its face, justified.”

I responded, “I
don’t know why you even say this. It’s like you’re trying to come up with
excuses for why certain defendants never get out of jail even though they’re
bailable. You know, based on this statement and the last one, I’d say you guys
don’t even believe in the right to bail. We’re getting kind of high up. Are you
dizzy?”

On the fourth floor,
he said, “The accused has a right to reasonable bail if a capital offense
was not committed.”

I answered, “Well,
I’ll give you one this to speed things up. The right to bail in America’s pretty
complicated, and I’m beginning to think you don’t even really know what it is.”

On the fifth floor,
he said, “Society has a right to know the accused will appear for trial.”

I retorted, “True,
but society has a right to be protected, too, and commercial bail has nothing
to do with that. Society also has a right to know whether their jails are being
run lawfully and efficiently, and commercial bail gets in the way of all that. Members
of society have a right to know that if they get arrested, they won’t be
treated unconstitutionally, and commercial bail gets in the way of that, too.”

On the sixth floor,
he said, “The most effective means to insure the accused appears for trial
is a fully guaranteed bail bond backed by an admitted surety company and
executed by a licensed bail agent.”

I rebutted, “That’s
not true. You’re relying on those studies that the feds said you can’t rely on
anymore. But even if commercial bonds are helpful at getting people to court,
they have nothing to do with public safety, and they really hinder release.
There are only three purposes underlying bail, and commercial surety bonds fail
miserably with at least two of them.

On the seventh
floor, he said, “Unsecured releases do not offer a guarantee and are akin to
an air sandwich.”

I countered,
“Mmmmmmm ……. air sandwich.”

“Seriously, though,
you’re forgetting about all those other things we use to motivate people to
come back to court, like new charges, contempt, pretrial services agency
supervision, and all those nonfinancial conditions that we came up over the
last 50 years. Risk is inherent in bail. There’s no guarantee. There’s only
stuff that’s fair and works, and stuff that isn’t and doesn’t. Commercial
surety bonds are unfair and they don’t work. The same concept is true with any
condition of release. If the GPS monitors don’t work, we won’t use them, and we
won’t tolerate GPS manufacturing lobbyists nosing around trying to force people
to use them.

On the eighth floor,
he said, “Only commercial bail bonds guarantee the production of the accused
in court or payment of the bail amount when an offender cannot be produced.”

I said (ran out of synonyms),
“Guarantee?! Who are you kidding?” And I started talking about most people
coming in on their own, law enforcement bringing in the rest, forfeitures,
exonerations, insurance company pay-out rates, etc. . . . . .

He got off.

The
current system of commercial sureties administering mostly secured bonds hasn’t
worked since America implemented it in 1900. There’s a future for bail agents
in American pretrial release and detention, but they’ll have to ditch the
insurance companies. Even their elevator speech is messed up.

About Me

Hello everyone! I'm a criminal justice system analyst with 25 years of legal experience. I was editor-in-chief of the law journal in law school, and I worked as a law clerk to a federal appellate judge right after graduation. I then worked in private practice for several years in Washington DC before I came back to Colorado, where I became interested in criminal justice. I worked for both the state and federal courts of appeals as a staff attorney doing criminal appeals, and I also taught at Washburn Law School for a year before I got involved in the local criminal justice system issues in Jefferson County, Colorado. In that job I quickly realized that there was a lot of room for criminal justice reform, and that's what I've been doing ever since.

For the past several years I've been working on reforming America's traditional system of administering bail. Believe me, it really needs it. I started this blog because I was getting somewhat fed up with all of the slanted misinformation and self-serving research and analyses circulated in the field. This is my little way of chiming in.

I think I've had plenty of formal education, and I hope I'm not forced to get any more (although I'm taking two classes on Coursera!). I have a law degree, a masters of law degree, and a masters of criminal justice degree in addition to the two degrees that I got in college.

I am currently the Executive Director of a Colorado nonprofit called the Center for Legal and Evidence-Based Practices. It serves as my platform for performing neutral and objective research and analysis of topics relating to bail and pretrial justice. I hope that you'll get something out of this blog, which will undoubtedly contain a few things you aren't likely to find anywhere else.